People v. Bentson

California Court of Appeal May 26, 1933 No. Docket No. 2325.Published

Before: Desmond

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Holding. The court held that the defendant's motion for a new trial based on the failure to pronounce judgment within the statutory period was properly denied because the defendant waived the statutory time limits by requesting probation and consenting to continuances. Additionally, the court dismissed appeals from non-appealable orders and affirmed the order granting probation.

Issues

Whether an order denying a motion to arrest judgment or a motion to dismiss is appealable.
Whether the trial court erred in denying a motion for a new trial based on the failure to pronounce judgment within the time prescribed by Penal Code section 1191.
Whether the trial court abused its discretion in the terms of the probation granted to the defendant.

Disposition. affirmed in part and dismissed in part

Quotations verified verbatim against the opinion

“An order denying motion to arrest judgment is not among the orders from which an appeal may be taken under section 1237 of the Penal Code.”

“Upon this record we feel that defendant’s motion for a new trial under the sections of the Penal Code hereinbefore noted was properly denied.”

“Section 3515 of the Civil Code declares that he who consents to an act is not wronged by it, and this maxim of jurisprudence seems applicable here.”

DESMOND, J.,

pro

tem.

The defendant was found guilty by a jury of violating section 1% of chapter 559, Statutes of 1929, which reads as follows:

“Sec. 1

y2.

Any money or property put up by any employee or applicant for employment as a cash bond in any ease must not be used for any purpose other than liqui

[297]

dating accounts between the employer and his said employee or return 1o the said employee or applicant for employment, and shall be held in trust for this purpose and not mingled with the money or property of the employer who receives same, any provision of any contract between the employer and employee or applicant for employment to the contrary notwithstanding. Any employer or prospective employer, or agent or officer thereof, who misappropriates any such money or property, mingles it with his own or uses it for any other purpose than that set forth above, shall be guilty of theft and shall be punished, upon conviction thereof, in accordance with the provisions of sections 486, 487, 488, 489 and 490 of the Penal Code.”

The amount of money delivered by the complaining witness to the defendant and not returned was $260. The verdict in this case was rendered October 18, 1932, and after various continuances, probation was granted the defendant on December 16, 1932. On that same date the court had denied motions for dismissal, for arrest of judgment,' and for a new trial, the latter motion being grounded on sections 1191 and 1202 of the Penal Code; in other words, the defendant claiming then and now that judgment was not pronounced against him within the time prescribed by law in the first mentioned section, and that, therefore, he is entitled to a new trial under the provisions of the second. Defendant gave oral notice of appeal at the time his various motions were denied and sentence imposed. The written notice of appeal is “from Order denying motion for a new trial under P. C. 1191 and Order denying Motion for Arrest of Judgment in the above entitled case and judgment of probation sentence herein”.

An order denying motion to arrest judgment is not among the orders from which an appeal may be taken under section 1237 of the Penal Code. (See

People v. Bentson

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DESMOND, J.,

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